ZONING AS A TOOL TO KEEP AWAY THE COMPETITION?

The City of Tucson’s “big box” ordinance has been back in the news because Wal-Mart gathered enough signatures on an initiative petition to put an amendment of the ordinance to a vote. They got hung up, however, by the City’s refusal to accept the petitions because of two Arizona Supreme Court decisions that say that zoning ordinances can’t be changed by initiative.

The “big box” ordinance says if you have a retail location of more than 100,000 square feet, you can’t use more than ten percent of it to sell groceries. How many retailers have stores of over 100,000 square feet? Wal-Mart, Target, Price Club, Home Depot, Lowe’s? I can’t think of any others that I would guess are that big. Which of those would want to sell groceries? I don’t think Lowe’s and Home Depot are likely to start selling groceries next to the indoor lumberyard anytime soon. That leaves, of course, the “big box” guys that many people seem to love to hate.

And who would want to keep the “big box” guys from selling groceries? The grocery stores, of course. You know, all those “little guys” like Fry’s, Safeway, and Albertsons.

Maybe there is a good reason why I should care whether more than ten percent of Wal-Mart’s floor space is used to sell groceries instead of t-shirts, but I can’t think of what that reason would be. The “big box” guys already sell everything else under the sun, so what difference does it make if they’re selling corn flakes in the next aisle over from the t-shirts?

Well, it makes a difference to the owners and employees of Fry’s, Safeway, and Albertsons, because while those “little guys” think it’s not only their right but their duty to have a pharmacy, a bank, a video rental, a florist, a Starbucks and anything else they think might be profitable inside their store (and a gas station out front), they want to make sure that they have something that the “big box” guys don’t. Otherwise, everyone will just go to the “big box” guys for everything, right?

So, the “little guys,” or to be more accurate, the union representing the employees of the “little guys,” capitalized on the general hatred of the “big box” guys to get the City to include in the “big box” ordinance the part that limits groceries to ten percent of the floor space. The hatred of the “big box” guys is apparently so powerful that it blinded everyone to the fact that United Food and Commercial Workers Union was the driving force behind the ordinance. Didn’t anyone notice that the spokesman for the pro-ordinance forces was dutifully identified in the newspaper accounts as the lawyer for the United Food and Commercial Workers Union?

Coming back to the land-use question, is there really any difference between selling t-shirts and selling corn flakes for purposes of land use regulation? If there isn’t, then there isn’t any reason for a land-use ordinance, like the “big-box” ordinance, to treat them differently. The only reason for them to be treated differently, then, is that the guy with a (slightly) smaller store who sells corn flakes (like, say, Safeway) doesn’t want competition from a guy with a bigger store (like, say, Target). Or, perhaps, the union that represents the employees of a particular store wants to make sure that store doesn’t have direct competition from a non- union store. And if nobody likes the non-union store (even though the place sure seems to do a brisk business for such a disliked establishment), then nobody is really going to care that there’s no good reason to treat that store differently based on what it sells, right?

Some random items I noticed while working on various projects last month:

Seen on the website of another law firm as a teaser for their registration only newsletter archive (meaning that you have to give them your contact information in order to look at their newsletters): “You can learn from the mistakes of Anna Nicole!” That statement could send you in a whole bunch of different directions, depending on which mistakes they are talking about (was marrying a billionaire four times her age one of them?).

Did you know that when you parallel park your car, the wheels on the right side must be no more than 18 inches from the curb?

The University of Arizona College of Medicine has a new initiative for leaving your body to science called the “Willed Body Program.” Great program, not-so-great name.

The information contained in the Law Office of DeConcini McDonald Yetwin & Lacy P.C. web site is provided for informational purposes only, and should not be construed as tax or legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established a formal attorney-client relationship.